notes from the ubiquitous surveillance society

Who gets Freedom of Information?

UK transparency campaigner, Heather Brooke, writes a comment piece on The Guardian website today on why she believes that UK university cancer researchers should have to give up information to transnational tobacco giant, Philip Morris. The basis for the argument is that Freedom of Information law should apply regardless of who the applicant is.

I generally admire Heather’s single-minded work on FoI, but single-mindedness is not always a virtue, and can sometimes lead to overly extreme conclusions which lack a broader understanding of the political economics involved. As in this case. As a researcher and analyst rather than a campaigner, I can see that there are three important counter-arguments to her piece:

1. Corporations are not people. There is a serious and ongoing battle here. Although legal incorporation means companies are often considered as legal people, we should not start to think of them as having ‘rights’ like individuals, not should rights that come from citizenship or by being an individual voter apply to them. Recently, the US supreme court rejected the argument of a large telecoms company that it had privacy rights. The worrying thing is that several lower courts had accepted that it could have such rights. Rather than providing corporations with more equivalences to human rights, we need to be holding corporations to account. This brings me to…

2. The really important issue with large private companies and FoI is why those large private companies are not subject to the same kind of transparency. Corporate confidentiality makes no sense even in the context of liberal economic theory, however it makes even less sense if we think about FoI as a method of accountability. Corporations are unable to be held accountable via electoral processes and the markets are too diffuse and diverse (and spread across too many different countries) to work as a mechanism of accountability, so we need law that rebalances the power imbalances between corporations on the one had, and people, individually and collectively, on the other – through transparency. That is, after all, what is its main point when it comes to state transparency and FoI; it’s not really about ‘value for the tax payer’, it’s about power.

3. On that note, FoI is being increasingly used against academics and activists in particular as a form of intimidation by corporate interests. This is not to say that academics and activists should not be accountable, but it is not the case that all parties here of on a level playing field, and further, mechanisms of accountability are themselves not simply neutral or unequivocally always a good thing because of what they are supposed to do. Law has to embed intention, and be interpretable by the courts, in a way that clearly differentiates between legitimate use (for people holding organisations to account), poor excuses (as in the state claiming expense or lack of time as reasons for not releasing information), and blatant misuse of the law for purposes for which it was not intended. If it does not, it can simply become another method the intensification of organisational power against the interests of people.

I’m afraid I really don’t buy Heather’s argument in this case, and am – I think like you – more than a little disturbed that she seems to have tipped over into what comes across as an almost ‘religious’ commitment to transparency with little apparent consideration of context, balance or principle in this instance.

It doesn’t help that she introduces a so-poor-as-to-be-irrelevant comparison / illustration from her latest book: weather data and GPS signals are not even close to personal opinions and should not be confused – the sooner people realise ‘data’ is about as fuzzy a word as ‘stuff’, the better. (In fact, those two penultimate paragraphs seem jarringly out of place – not least because it is pretty clear we are not talking about re-use of “official government data” in this instance.)

Surely the point of Freedom of Information – and transparency more generally – is, as you say in your point 2, to (try to) rebalance serious imbalances of power.

FoI is a tool that should enable individuals, and thereby the public at large, to discover what powerful institutions (bureaucracies) are doing. It is not a tool for corporations, many of which have their own serious transparency problems, to go ‘raiding’ public institutions for information – which, despite the nature of the institution as a whole, may not even have been collected/created on the public purse.

In this instance, I don’t know precisely how CRUK or this particular study were funded but, if it is true that CRUK was the sole funder of the study, then this starts to look more like a company trying to use FoI to get at ‘intellectual property’ of a ‘competitor’ than anything else. Not what FoI was intended for at all!

Furthermore, with regard to scientific research (when done properly) there are mechanisms – not perfect but certainly pretty decent – for the information to be disseminated / made available. Studies and reports are peer-reviewed and published, methodology and sets of relevant data too. Sure, you may have to wait until the research team has finished its job of analysis – but they are the ones who gathered the data for a stated purpose, so it only reasonable to allow them the time to do this.

Good science is made public. If only, say, pharmaceutical companies were obliged to register every study they did and publish their results in full…

There is also the issue that some – possibly quite a bit – of the dataset in question is personal/sensitive/confidential. I don’t know, but as it involves (young) people I imagine the study will have been carefully ethically constructed and constrained. The University team may have made undertakings to keep individuals’ responses in confidence (FoI shouldn’t trump this) and/or it may be difficult/costly to sufficiently anonymise the raw data for ‘general release’ – one of the exemption under FoI which, to give her her due, Heather does point out.

The issue of whether PM qualifies as a ‘person’ who can make an FoI request in the UK is interesting and relevant – but basically, for me, falls into the category of ‘talking about the technology’. Whether PM used their solicitor, a direct approach or a UK employee to make the request *may* make a difference in law – but that just shows that the law can (and will, and is) being ‘gamed’…

This is, I’m afraid, a debate that will rage on and on. People will continue to (over-)generalise, to set up false dichotomies and straw men (‘privacy vs transparency’ is almost as much of a no-brainer as ‘privacy vs security’ if you have half a clue about what you are talking about), to argue selectively, to reveal/revel in their own biases and prejudices, etc., etc.

(I could launch into a rant about the paucity of genuinely evidence-based policymaking, but I’ll spare you that one…)